relevant provisions obviously mean acts or functions which the
concerned public servant can perform in his official capacity and not
in the capacity of a private citizen. The appellant, admittedly, was
working as a Tax Recovery Clerk in the Thane Municipal
Corporation and had nothing to do with the demolition of the
illegal constructions. The not reporting of the matter to the
Encroachment Department, which was said to be the act for which
bribe was being demanded, cannot be said to be an official act of
the appellant in his capacity as a public servant. The favour which
the appellant was to show to the complainant in return for the
bribe, viz., 'of not reporting the matter to the Encroachment
Department', had nothing to do with the official duties of the
appellant. Not reporting of the matter would be an act performed
by the appellant in his private capacity and not in his official
capacity. When the complainant had made illegal construction, it
could be reported to the Encroachment Department by any person.
The appellant had nothing to do with the work of the
Encroachment Department and there is not even an assertion to
that effect. The work carried out by the complainant was obvious
and could be noticed by anyone. For reporting or not reporting
such matter, anybody could similarly demand gratification from
the complainant. The appellant's position as a Tax Recovery Clerk
in the Thane Municipal Corporation, in no manner gave the status
of an official act to his not reporting the matter to the
Encroachment Department. Thus, what the appellant allegedly
agreed to do in return for a bribe was not his official act and was
an act purely in his personal capacity, to which the provisions of
the P.C.Act do not apply.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1152 OF 2004
RAVINDRA MAHADEO KOTHAMKAR )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
CORAM : ABHAY M. THIPSAY, J.
DATE : 9th OCTOBER 2015.
Citation; 2015(4) Crimes 222 Bombay
1 The appellant, a Tax Recovery Clerk, serving with the
Municipal Corporation at Thane, was prosecuted on the allegation
of having committed offences punishable under Section 7 and
Section 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (P.C.Act). The learned Special Judge
(appointed under Section 3 of the P.C.Act) after holding a trial
found him guilty of the aforesaid offences. The learned Special
Judge sentenced the appellant to suffer Rigorous Imprisonment
for 1 year and to pay a fine of Rs.1500/ on each of the said two
counts, with default sentences of Rigorous Imprisonment for 6
months. The learned Special Judge directed that the substantive
sentences would run concurrently.
Being aggrieved by his conviction and the sentences
imposed upon him, the appellant has approached this court by
filing the present appeal.
2 I have heard Shri M.J.Bandgar, the learned counsel for
the appellant. I have heard Smt.S.V.GajareDhumal, the learned
APP for the State. I have gone through the entire evidence
adduced during the trial. I have also carefully gone through the
impugned judgment.
3 The prosecution case, as put forth before the trial
court, in brief, be stated thus :
Nandkumar Borade (hereinafter referred to as 'the
complainant') (PW1) owns houses bearing nos.298 and 299 at
Kolshet, Thane. His houses are assessed for taxes by the Thane
Municipal Corporation. The Thane Municipal Corporation
improved the road passing from in front of the houses of the
complainant by making it of cement concrete. This resulted in
raising the height of the said road, and consequently, the houses of
the complainant became low. The complainant apprehended that
the rain water would enter his houses, and therefore, raised the
height of his houses. On 5th June 1999, when the repairs and the
construction work as undertaken by the complainant was going
on, the appellant Tax Recovery Clerk, came to his house and asked
him whether he had taken permission of the Thane Municipal
Corporation for the repairs. The complainant stated that he had
not taken any such permission, but added that, he had not carried
out any new construction and had only increased the height of the
houses. The appellant then said that even for carrying out repairs,
permission of the Corporation would be necessary, and since the
complainant had not taken such permission, the appellant could
ask the construction to be demolished. The appellant asked the
complainant to meet him in his office on 7th June 1999. The
complainant agreed to meet him accordingly, but actually could
not go to the office of the appellant, due to some other work. On
8
th June 1999, the appellant again came to the house of the
complainant, and asked him as to why the complainant did not
come to the office. The complainant replied that it was because
he had no time. The appellant, then, said that, the complainant
had carried out repairs without obtaining a legal permission for
the same, and that, the complainant should pay him an amount of
Rs.1,000/. The appellant also said that unless the said amount
would be paid, the appellant would report the matter to the
Encroachment Department, and get the construction demolished.
The complainant, then, pleaded with him not to do so, as he
would suffer great loss, and that, he did not have so much money
at that time. The appellant, then, asked him to come to his office
on the next day i.e. on 9th June 1999, at about 2.00 p.m., and give
an amount of Rs.1,000/, and again threatened that otherwise he
would report the matter to the Encroachment Department.
The complainant, then, realized that unless he would
pay an amount of Rs.1,000/ as bribe to the appellant, he would
take action for demolition of the construction, and that, therefore,
he reported the matter to the Anti Corruption Bureau (ACB). His
complaint (Exhibit 9) was noted down by Arun Salunke, Inspector
of Police, attached to ACB Unit, Thane (PW3). Salunke
immediately decided to lay a trap. He called two panchas Vishal
Godbole (PW2) and one Chaudhary. The panchas were
introduced to the complainant. The complainant narrated the
gist of his complaint to the panchas. The complaint was shown to
the panchas, who put their signatures below the same. An amount
of Rs.1,000/ out of the cash of Rs.1100/, which the complainant
was having, consisting of currency notes of Rs.100/ each, was
taken from the complainant. Anthracene powder was applied to
the currency notes and the qualities thereof with demonstration
were explained to the panchas and the complainant. The panch
Godbole (PW2) was to accompany the complainant and panch
Choudhary was to remain with the raiding party at the time of the
trap. The complainant was instructed to hand over the tainted
amount only on a demand made by the appellant. Pretrap
panchnama (Exhibit 21) was drawn. The complainant was to give
a signal to the raiding party after handing over the bribe amount.
4 The police party and the panchas went to the Ward
office by a police jeep, where the appellant was working. They
reached there at about 2.00 p.m. The complainant and Godbole
went ahead. The other members of the raiding party were
following them. When the complainant and panch entered the
office, the appellant was present. The complainant greeted him.
The appellant was taking lunch. He asked the complainant to sit.
After his lunch, he asked the complainant to come to a hotel for
taking cold drink. Thereafter, the complainant, Godbole and the
appellant went to Hotel Sairam situate nearby. On the way, the
appellant asked the complainant as to whether he had brought the
amount, to which the complainant replied in affirmative. The
three then went inside the hotel. The appellant ordered lassi for
all three of them. While having lassi, the complainant asked the
appellant of the step he was to take about the construction. The
appellant then answered that he was not going to report against
the complainant. The appellant paid the bill. When all of them
came out of the hotel and travelled some distance, the appellant
asked the complainant to give the money. The complainant then
handed over the tainted amount to him. The appellant accepted
the same and kept it in his pant pocket. On the complainant
giving the predetermined signal, P.I.Saluke (PW3) reached there,
held the hands of the appellant and introduced himself and the
members of the raiding party to the appellant. The tainted
amount was recovered from the appellant. When examined under
ultra violet rays, traces of anthracene powder were noticed on the
right hand and right pant pocket of the appellant. The appellant
was apprehended and after completion of investigation, chargesheet
was filed against him, pursuant to which he was prosecuted
and convicted as aforesaid.
5 Mr.Bandgar contended that the prosecution case was
not believable. He submitted that there were material
discrepancies in the evidence of the prosecution witnesses. He also
submitted that no verification of the demand, allegedly made by
the appellant, was made, before laying of the trap. He submitted
that the defence of the appellant which had been taken by him in
the trial court by filing the written statement, was acceptable, and
at any rate, plausible. The defence of the appellant was to the
effect that he had not made any demand of any gratification, and
that, since the complainant apprehended that the appellant would
lodge a complaint regarding the unauthorized construction carried
out by the complainant, he made a false report to the ACB, got a
trap laid, and thrust the tainted amount in the pant pocket of the
appellant.
6 Shri Bandgar also submitted that the sanction to
prosecute the appellant, as granted by Kalyaneshwar Bakshi
(PW4), who was the Municipal Commissioner of Thane Municipal
Corporation at the material time, is not valid or legal. It is
submitted that the same has been granted without application of
mind. Shri Bandgar contended that the learned Special Judge
ought to have acquitted the appellant.
7 The learned APP submitted that the evidence of the
complainant, the panch, and the Investigating Officer Salunke, is
consistent and without any infirmities. According to her, their
evidence clearly indicates that the appellant had made a demand
of bribe, and that, the tainted amount was duly accepted by him,
whereafter he was immediately trapped. According to her, the
order of conviction as recorded by the learned Special Judge and
the sentences imposed by him upon the appellant, being proper
and legal, need no interference.
8 It is apparent that the complainant had carried out
unauthorized construction work. Though the complainant has
attempted to term it as repair work, a reading of his evidence
leaves no manner of doubt, about the unauthorized character of
the construction work done by him. In the crossexamination, he
admitted that he raised the height of the structure by 3 feet and
even the door was reerected at a higher level. He also admitted
that his brother had constructed an upper floor to the house
without obtaining permission. In the crossexamination of the
complainant it has been brought on record that, on the date on
which he filed the complaint with the ACB, the construction work
was going on. Thus, that the complainant is a person who had
made unauthorized construction and that such construction was
liable to be demolished cannot be doubted at all.
9 In appreciating evidence in trap cases, the character of
the complainant assumes importance. The judicial
pronouncements have recognized that there are various types of
complainants. There are some complainants who basically want
some favour from a public servant illegally and because of the
refusal of the public servant to oblige him, decide to lodge a
complaint against him. There are other types of complainants
whose genuine and legitimate work is unnecessarily held up by a
public servant with the object of obtaining illegal gratification
from such complainants. In this case, the complainant,
admittedly, being a person who had acted contrary to law and
who faced the danger of inviting action by the local authorities
against the unauthorized construction work carried out by him,
his evidence needs to be scrutinized with due care.
10 The complaint (Exhibit 9) shows that the demand of
money was made by the appellant on 5th June 1999 for the first
time, and then, on 8th June 1999, at about 2.00 p.m. The amount
was to be paid in the office of the appellant by 2.00 p.m. on 9th
June 1999. In his evidence, however, the complainant states
about the appellant coming to his house on 8th June 1999 only in
the evening. The significance of this shall be discussed at a later
stage.
11 What happened actually is not what was expected.
When the complainant went to the office of the appellant with the
money, as allegedly demanded by the appellant on the previous
date, the appellant did not ask for money. On the contrary, he
asked the complainant to come to a hotel for having cold drink,
and it is only on the way that he, allegedly, asked the complainant
whether he had brought the amount, as had been told to him.
When the complainant answered in affirmative, the appellant still
did not demand the amount and went along with him and the
panch inside the hotel. He did not question the presence of
Godbole along with the complainant and did not bother to ask
him as to who that person was. The evidence of the panch
Godbole does support this version of the complainant, but it
cannot be overlooked that Godbole had previously also acted as a
panch on about 3 to 4 occasions, as admitted by him. That, the
appellant, who wanted to take money from the complainant,
should not feel the presence of Godbole suspicious, and would not
even ask the complainant as to who he was, and why was he with
him, is difficult to accept.
12 There are some material variations about the place
where the tainted amount was accepted by the appellant.
According to the complainant and the panch, the same was
accepted after all three of them had lassi in the hotel and were
coming back to the office of the appellant. The money was not
demanded by the appellant or paid by the complainant in the
hotel. According to the complainant, the appellant was
apprehended exactly in front of a pan shop near Sairam hotel.
The complainant gives his estimate of the distance between the
place where the appellant was caught and the pan shop as 30 feet.
According to him, the pan shop is about 40 to 30 feet away from
the hotel. The panch, however, says that the place where the
bribe was accepted, was about 50 feet away from Sairam hotel
towards the east. Indeed, these discrepancies would not matter
very much, but the Investigating Officer Salunke has a totally
different version. According to him, when the complainant, panch
and the appellant came out of the office of the appellant and went
to Sairam hotel, he and other members of the trap laying party,
followed them. It is an admitted position that the Investigating
Officer and the other members of the trap laying party had not
entered the said Sairam hotel and were waiting outside.
According to Salunke, the complainant came out and gave a
signal, whereafter Salunke rushed inside the hotel and caught
hold of the appellant and took him to the Municipal office.
Though I am not inclined to give much importance to the
discrepancies in the distance between the place where the
appellant was apprehended and Sairam hotel and / or pan center,
the discrepancy about whether the appellant was apprehended
inside the hotel or outside the hotel, is a major one, and cannot be
lightly ignored.
13 In this background, the factors that the complainant
himself was a law breaker, and that, there had been no previous
verification of the demand allegedly made by the appellant,
render it difficult to accept the version of the prosecution as put
forth. The evidence about acceptance of the bribe by the
appellant is not consistent or reliable. This doubt is further
strengthened because of the following :
It may be recalled that in his complaint, the
complainant had spoken about the appellant having visited his
house on 8th June 1999 at 2.00 p.m. In the evidence, however, he
said that the appellant had come to him on 8th June 1999 in the
evening. The evidence reveals that on 8th June 1999 the appellant
had gone to the house of the complainant with his superior one
Kashiram Gavli. The Investigating Officer Salunke did admit that
the investigation had revealed that the appellant and Gavli had
gone to the house of the appellant at about 2.00 p.m., and that,
the complainant was present there. The contention of the
appellant was that he could not have demanded a bribe in the
presence of his superior. This contention was put forth before the
learned Special Judge, who, however, discarded it by observing
that the appellant might have gone to the house of the complainant
on two occasions on 8th June 1999. The learned Judge also
observed that the complainant stated that he did not remember
whether the appellant was accompanied by any other persons on
8
th June 1999, but further observed that the visit of the appellant
with his superior was at about 2.00 p.m. as revealed by the
Investigating Officer, but the complainant spoke about the visit of
the appellant and his demand for bribe in the evening. To
reconcile, the learned Judge himself invented the possibility of the
appellant having visited the house of the complainant twice on 8th
June 1999, though it was not the case of the complainant at all, that
the appellant had gone to him twice on that date. Admittedly, the
said Gavli passed away during the trial and could not be examined
as a witness for the defence by the appellant.
14 When the trap was being laid without verification of
the demand, it was essential to have truly independent witnesses
as panchas. However, admittedly, panch Godbole had previously
acted as a panch for the ACB on about 3 to 4 occasions. Selecting
such a panch casts doubt on the sincerity of the investigating
agency, particularly, because the trap was laid hurriedly and
without verification of the demand.
15 A perusal of the impugned judgment shows that the
learned Special Judge has proceeded on the presumption of guilt
as opposed to the presumption of innocence. He noticed some
inconsistencies and variations in the versions of the complainant
and the panch Godbole, but did not give any importance to those
variations by observing that “it was likely that the panch witness
either did not hear attentively what the accused actually spoke or
did not remember.” Regarding the other discrepancies between
the evidence of the witnesses as to the spot where the appellant
was apprehended, the learned Judge observed that 'having regard
to the mental state of the witnesses, there was a likelihood of they
being confused about the place of acceptance of the bribe and
place of catching the appellant' (paragraphs 23, 25 and 26 of the
impugned judgment). The learned Judge also reasoned that, that
the complainant and panch Godbole had approached the
appellant and that the appellant took them to the hotel, offered
them lassi etc. was admitted. He thought this to be corroborating
the evidence of the prosecution witnesses forgetting that
corroboration was required not with respect to these happenings,
but with respect to demand and acceptance of bribe. When as per
the prosecution case the appellant had asked the complainant to
pay the bribe to him in the office, that he did not demand it there
and instead took the complainant out in a hotel, is actually a
factor weakening the case of the prosecution, but the learned
Judge has held the same aspect as favourable to the prosecution.
The learned Judge posed a question as to, 'why the appellant
found it necessary to take the complainant and panch to the hotel
and offer them lassi and oblige them, was not explained', and that,
'mere fact of acquaintance was not sufficient to take him to the
hotel.' The learned Special Judge observed that, the fact that the
appellant took them to the hotel, itself creates suspicion regarding
the defence of the appellant.
16 In my opinion, the following factors
(a) that, there had been no verification of the
demand before laying of a trap;
(b) that, the trap was laid as soon as the complaint
was made and rather hurriedly;
(c) that, the details regarding the manner and the
place of acceptance of the bribe amount given by
the prosecution witnesses differ,
it was not safe to hold the appellant guilty of the alleged offences.
At the cost of repetition, it must be observed that in trap cases
under the P.C.Act, the character of the complainant assumes
significance and in the instance case, the complainant himself
was, admittedly, a law breaker.
17 However, there is a more preliminary and primary
aspect of the matter which was not at all considered by the trial
court, or even raised before this court. The accusation against the
appellant is that, he had demanded illegal gratification for not
reporting the matter to the Encroachment Department. This is the
case of the prosecution itself, and even the charge framed by the
learned Special Judge is in accordance with this theory of the
prosecution. A bare reading of Section 7 and Section 13 of the
P.C.Act indicates that the demand of illegal gratification must be
on account of an official act and the favour or disfavour must be
done in the exercise of official functions, and that, the obtaining of
a valuable thing or its pecuniary advantage must be by corrupt or
illegal means or by abusing one's position as a public servant.
Here, the act in respect of which the bribe was to be paid, was the
act of not reporting the matter to the Encroachment Department.
The favour that was to be done was by not reporting the matter to
the Encroachment Department.
18 The official act or official function referred to in the
relevant provisions obviously mean acts or functions which the
concerned public servant can perform in his official capacity and not
in the capacity of a private citizen. The appellant, admittedly, was
working as a Tax Recovery Clerk in the Thane Municipal
Corporation and had nothing to do with the demolition of the
illegal constructions. The not reporting of the matter to the
Encroachment Department, which was said to be the act for which
bribe was being demanded, cannot be said to be an official act of
the appellant in his capacity as a public servant. The favour which
the appellant was to show to the complainant in return for the
bribe, viz., 'of not reporting the matter to the Encroachment
Department', had nothing to do with the official duties of the
appellant. Not reporting of the matter would be an act performed
by the appellant in his private capacity and not in his official
capacity. When the complainant had made illegal construction, it
could be reported to the Encroachment Department by any person.
The appellant had nothing to do with the work of the
Encroachment Department and there is not even an assertion to
that effect. The work carried out by the complainant was obvious
and could be noticed by anyone. For reporting or not reporting
such matter, anybody could similarly demand gratification from
the complainant. The appellant's position as a Tax Recovery Clerk
in the Thane Municipal Corporation, in no manner gave the status
of an official act to his not reporting the matter to the
Encroachment Department. Thus, what the appellant allegedly
agreed to do in return for a bribe was not his official act and was
an act purely in his personal capacity, to which the provisions of
the P.C.Act do not apply.
19 The judgment and order of conviction, as recorded by
the learned Special Judge, is not in accordance with law. The
same is, therefore, required to be interfered with.
20 The appeal is allowed.
The impugned judgment of conviction and the
sentences imposed upon the appellant are set aside.
The appellant is acquitted. His bail bonds are
discharged.
Fine, if paid, be refunded to him.
21 The appeal is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY, J.)
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